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EXHIBIT 10.36
[Ameriquest Mortgage Company Letterhead]
MASTER CONSULTING AGREEMENT
[Agreement #CM001]
This Agreement (the "Agreement") is made and entered into as of the thirty
first day of December, 1999, by and between AMERIQUEST MORTGAGE COMPANY (the
"Company"), a Delaware corporation, and FutureLink Micro Visions Corp., a
Delaware corporation.
RECITAL
WHEREAS, FutureLink Micro Visions Corp. and the Company desire to set forth
the terms and conditions upon which FutureLink Micro Visions Corp. will render
any future services to the Company.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the above recitals and of the terms,
covenants and conditions hereinafter set forth, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Duties of FutureLink Micro Visions Corp.
(a) FutureLink Micro Visions Corp. shall serve in the capacity of
consultant to the Company to complete the agreed upon assignments in accordance
with the instructions of the Company and the specifications of any related
exhibit to this Agreement. The Company shall engage FutureLink Micro Visions
Corp. to provide during the term of this Agreement such services of a consulting
or advisory nature as the Company may request with respect to its business
including, by way of example and not by way of limitation, technical and
analytical advice and services with respect to the FiTech system and any other
programming and/or design efforts as detailed in the attached exhibits.
(b) FutureLink Micro Visions Corp. shall devote its best efforts to
perform the duties as outlined in attached exhibits, so as to advance the
interests of the Company. From time to time additional exhibits may be added to
this agreement upon written approval from both parties.
(c) FutureLink Micro Visions Corp. shall act solely in a consulting
capacity hereunder and shall not have any authority to act for the Company, to
give instructions or orders on behalf of the Company or otherwise bind, obligate
or make commitments for or on behalf of the Company.
(d) FutureLink Micro Visions Corp. agrees and acknowledges that at no
time during the effectiveness of this Agreement will FutureLink Micro Visions
Corp., or any of Consultant's employees, be treated as an employee or employees
of the Company. All payments made to FutureLink Micro Visions Corp. by the
Company (whether for services rendered, expenses, or otherwise) under this
Agreement will be recorded as income payments to FutureLink Micro Visions Corp.
and will be reported to the Internal Revenue Service on Form 1099. The Company
is under no obligation to withhold or pay any taxes or charges relating to any
compensation payable hereunder, including, without limitation, any federal,
state, or local income, withholding or payroll taxes; FICA (social security
taxes); state disability insurance premiums; Medicare or similar payments.
FutureLink Micro Visions Corp. shall be solely responsible to pay all taxes,
insurance and other withholding payments with respect to such compensation and
FutureLink Micro Visions Corp. specifically relieves the Company of all such
responsibilities. FutureLink Micro Visions Corp. agrees to indemnify, defend,
and hold the Company harmless from any claims, costs, or expenses arising out of
any withholding obligations imposed on the Company.
(e) In the event this Agreement contradicts the attached exhibits,
the exhibits shall control.
(f) All personnel of FutureLink Micro Visions Corp. assigned to
perform service for the Company pursuant to this Agreement shall be approved in
writing in advance by the Company.
2. Term. The term of this Agreement shall be for the period commencing
on the date of this Agreement and terminating on the unilateral, written
termination of this Agreement by either FutureLink Micro Visions Corp. or the
Company in its sole and absolute discretion, with sixty (60) days notice.
FutureLink Micro Visions Corp., 144475 Agreement CM001 page 1 of 9
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Ameriquest Mortgage Company
3. Compensation. As full and complete compensation for services rendered to
the Company in the capacity set forth above, the Company shall pay FutureLink
Micro Visions Corp. the amounts agreed upon in the attached exhibits. No
sharing of hours between exhibits is permitted without the prior written
agreement of both parties. FutureLink Micro Visions Corp. hereby acknowledges
and agrees that FutureLink Micro Visions Corp. shall have no right whatsoever
at any time to any income or profit of the Company.
4. Termination.
(a) Termination without cause:
[1] Either the Company or FutureLink Micro Visions Corp. may
unilaterally terminate this Agreement with or without cause at any
time, with sixty (60) days written notice.
[2] Notwithstanding any termination of this Agreement by either party
pursuant to this paragraph 4(a), the Company shall pay FutureLink
Micro Visions Corp.; (A) for any services rendered by FutureLink Micro
Visions Corp. prior to such termination, all in accordance with the
exhibits to this agreement; (B) any and all expenses incurred by
FutureLink Micro Visions Corp. prior to termination which are
otherwise reimbursable in accordance with Section 5 of this Agreement.
[3] Company shall pay the compensation owed FutureLink Micro Visions
Corp. pursuant to Sections 4(a)[2](A) and (B) above within thirty (30)
days of the termination of this Agreement.
(b) Termination for Cause:
[1] The Company may terminate this Agreement at any time, without
notice to FutureLink Micro Visions Corp., for cause. For the purposes
of this paragraph 4(b)[1], cause shall mean any breach by FutureLink
Micro Visions Corp. of the terms or conditions of this Agreement or
any of the exhibits which may from time to time be attached hereto, or
the failure of FutureLink Micro Visions Corp. otherwise to perform all
of its obligations hereunder in a competent and professional manner.
[2] Upon termination of this Agreement for cause, the Company shall be
obligated to pay FutureLink Micro Visions Corp. only for those
services satisfactorily completed prior to the event or events which
gave rise to the termination by the Company as provided for in
paragraph 4(b)[1] above. Such payments shall be made within thirty
(30) days of the termination of this Agreement at the rate set forth
in the applicable exhibit.
5. Expenses.
(a) Ameriquest shall reimburse FutureLink Micro Visions Corp. for
reasonable business, travel and entertainment expenses incurred on
behalf of Ameriquest and in connection with duties and
responsibilities to Ameriquest; provided, however, that all requests
for any reimbursement of any expense of FutureLink Micro Visions Corp.
shall be supported by such documentation as is necessary for said
expenses to be deducted for federal income tax purposes. Not
withstanding any term or provision herein to the contrary, FutureLink
Micro Visions Corp. shall not be entitled to, nor receive,
reimbursement of any expense without the express, prior written
consent of any one of the Chairman, the President or the Chief
Information Officer of Ameriquest, which consent may be withheld in
such officer's sole and absolute discretion, acting reasonably. In
addition, Ameriquest, in its sole and absolute discretion, acting
reasonably, may designate at any time those expenses of FutureLink
Micro Visions Corp. which shall be allocated to, and reimbursed by
Ameriquest. FutureLink Micro Visions Corp. shall submit any and all
expenses for which it desires reimbursement within thirty (30) days of
incurring the expense.
(b) For FutureLink Micro Visions Corp. employees residing outside the
Southern California Area, and not mentioned in Exhibits 1, 2, and 3,
Ameriquest will provide for the following expenses:
[1] For hours worked less than or equal to 80 billable hours,
Ameriquest will pay for all expenses relating to Airfare, lodging, per
diem and car rental.
FutureLink Micro Visions Corp., 144475 Agreement CM001 page 2 of 9
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AMERIQUEST MORTGAGE COMPANY
(2) For hours worked greater than 80 billable hours, Ameriquest
will pay for airfare only. FutureLink Micro Visions Corp. will
pay for lodging, per diem and car rental.
6. Miscellaneous.
(a) Confidential Information. During their retention hereunder and
thereafter, FutureLink Micro Visions Corp. will not disclose to any
person or persons not directly connected with the Company, or use for
their own benefit, any of the trade secrets, financial information,
systems, records or business methods of the Company or its affiliates,
or any of the business relationships between the Company or its
affiliates and any of their business partners or clients, unless such
disclosure shall be in direct connection with or as a part of
FutureLink Micro Visions Corp. performance of duties hereunder.
In the event that FutureLink Micro Visions Corp. is requested in any
proceeding to disclose any Confidential Information, it shall give
the Company prompt notice of such request so that the Company may
seek an appropriate protective order. It is further agreed that if in
the absence of a protective order FutureLink Micro Visions Corp. is
nonetheless compelled to disclose Confidential Information,
FutureLink Micro Visions Corp. may disclose such information without
liability hereunder, provided that FutureLink Micro Visions Corp.
shall give written notice to the Company of the information to be
disclosed as far in advance of its disclosure as is practicable and,
upon the Company's request and at the Company's expense, FutureLink
Micro Visions Corp. shall cooperate with the Company to obtain
assurances that confidential treatment will be accorded to such
information. FutureLink Micro Visions Corp. agrees that upon the
Company's request it will promptly redeliver to the Company all
copies of the Confidential Information. The term "Confidential
Information" does not include information which was or becomes
generally available to FutureLink Micro Visions Corp. on a
non-confidential basis; provided that the source of such information
was not bound by a confidentiality agreement. It is agreed that money
damages would not be a sufficient remedy for any breach of this
agreement and that in addition to all other remedies, the Company
shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach.
The provisions of this section shall survive the expiration or any
earlier termination of this Agreement.
(b) Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto with respect to the
transactions contemplated hereby and supersedes all prior agreements,
arrangements and understandings relating to the subject matter hereof.
(c) Amendment. This Agreement may be amended, modified, superseded or
canceled and any of the terms, covenants or conditions hereof may be
amended, only by a written instrument executed by both parties hereto.
(d) Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
(e) Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of California. Venue shall be
the appropriate court of jurisdiction in Orange County, California.
(f) Severability. If any provision hereof shall be found to be invalid
or unenforceable, all of the other provisions shall nonetheless
remain in full force and effect to the maximum extent permitted by
law.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
FutureLink Micro Visions Corp. 144475 Agreement CM001 Page 3 of 9
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Ameriquest Mortgage Company
(h) Notices. Any notice required or permitted to be given under this
Agreement by FutureLink Micro Visions Corp. to the Company shall be in
writing, personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid and
addressed to Ameriquest Mortgage Company, 0000 Xxxx & Xxxxxxx Xxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention: General Legal
Counsel, or such other address as the Company may specify from time to
time by like notice to FutureLink Micro Visions Corp. Any notice
required or permitted to be given under this Agreement by the Company
to FutureLink Micro Visions Corp. shall be in writing, sent by
registered or certified United States mail, return receipt requested,
postage prepaid or personally delivered and addressed to FutureLink
Micro Visions Corp., 0 Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, or
at such other address as FutureLink Micro Visions Corp. may specify
from time to time by like notice to the Company. Any notice personally
delivered shall be effective upon delivery. Any notice sent by mail in
the manner provided herein shall be effective on the date of delivery
or refusal indicated on the return receipt.
(i) Non-Exclusivity. Nothing in the agreement shall be construed to
confer upon FutureLink Micro Visions Corp. the exclusive rights to
provide consulting services of the type set forth in paragraph 1 above
or in any exhibits. The Company specifically reserves the right to
retain any other consultant or independent contractors to perform any
service whether or not related to those referred to in this agreement.
7. Proprietary Rights. The original work product shall be considered a work
for hire and shall be the exclusive property of the Company and FutureLink
Micro Visions Corp. shall have no ownership interest therein, except to the
extent the original work product embeds any of FutureLink Micro Visions
Corp.'s previously developed proprietary software. Micro Vision's
Proprietary Software shall remain the exclusive property of FutureLink
Micro Visions Corp. and the Company shall have no ownership interest
therein, but the Company shall have non-exclusive right to use Micro
Vision's Proprietary Software to the extent embedded in the original work
product.
8. Non-Solicitation of Ameriquest Mortgage Company Employees. FutureLink
Micro Visions Corp. recognizes that the Company employees constitute a
valuable asset of the company. Accordingly, FutureLink Micro Visions Corp.
hereby agrees not to employ or enter into a consulting relationship with
any person who is currently employed by the Company during the course of
this agreement and for a period of two (2) years from the date of
completion of this agreement without prior written approval by the Company.
9. Discount. In the purchase of Citrix software products, FutureLink Micro
Visions Corp. will give Ameriquest a discount of 27% off the current
published Citrix list price and Ameriquest agrees to use FutureLink Micro
Visions Corp. exclusively for all Citrix purchases. In consideration for
this agreement, FutureLink Micro Visions Corp. will reduce the basic hourly
programming rate for FiTECH programming services from $165 hourly to $160
hourly. If Ameriquest elects not to purchase Citrix software from
FutureLink Micro Visions Corp., and purchases Citrix software from another
vendor, the programming hourly rate for the FiTECH programming services
will increase to $165 immediately.
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AMERIQUEST MORTGAGE COMPANY
10. Credit. As a cost reduction to FiTECH programming, FutureLink Micro
Visions Corp. will provide a credit based on the cumulative purchase of
hardware, software and services (Citrix software purchases, FiTECH programming
services, and expense reimbursements, shall not be subject to credit), to be
applied to future invoiced FiTECH programming hours in the month of purchase,
as follows (this will appear as a line item credit on all future invoices):
$100,000.00 - $200,000.00 0.200%
200,001.00 - $300,000.00 0.400%
300,001.00 - $400,000.00 0.600%
400,001.00 - $500,000.00 0.800%
500,001.00 - $600,000.00 1.000%
600,001.00 - $700,000.00 1.200%
700,001.00 - $800,000.00 1.400%
800,001.00 - $900,000.00 1.600%
900,001.00 - $1,000,000.00 1.800%
1,000,001.00 - $1,100,000.00 2.000%
1,100,001.00 - $1,200,000.00 2.200%
1,200,001.00 - $1,300,000.00 2.400%
1,300,001.00 - $1,400,000.00 2.600%
1,400,001.00 - $1,500,000.00 2.800%
1,500,001.00 - $1,600,000.00 3.000%
1,600,001.00 - $1,700,000.00 3.200%
1,700,001.00 - $1,800,000.00 3.400%
1,800,001.00 - $1,900,000.00 3.600%
1,900,001.00 - $2,000,000.00 3.800%
2,000,001.00+ 4.000%
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in Orange, California, as of the date first above written.
AMERIQUEST MORTGAGE COMPANY
By: /s/ H. Xxxx Xxxx 12/10/99
----------------------- --------
H. Xxxx Xxxx, E.V.P. Date
Chief Information Officer
FutureLink Micro Visions Corp.
By: /s/ Xxxx Xxxxxx 12/21/99
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Xx. Xxxx Xxxxxx, President Date
COO
FutureLink Micro Visions Corp. 144475 Agreement CM001 page 5 of 9
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AMERIQUEST MORTGAGE COMPANY
EXHIBIT 1
[CM001.001]
FITECH SYSTEM PROJECT
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DESCRIBE DELIVERABLES, RATE, ETC. HERE
MR. XXXXXXX XXXX, in the capacity of programming support, commencing on or
about 01/01/2000 and extend through on or about 06/30/2000* provided at the
rate of $160.00 per hour straight time.
Maximum approved amount this exhibit is 1,000* hours and $165,000.00.
*Note: The contract period and number of hours may be extended at the same rate
through June 30, 2001 with ninety (90) days written notice to FutureLink Micro
Visions Corp prior to agreement expiration.
ADDITIONAL TERMS:
-----------------
* If the Company requires programming support in excess of 1,000 hours, the
above rate schedule applies to the programmer providing the services.
* Authorized overtime will be billed at 1 1/2 times hourly rate for
unscheduled weekend work. FutureLink Micro Visions Corp. will be given five
(5) days notice for scheduled weekend work.
* This agreement does not include the development and management of FiTech
System forms, as they will be managed separately.
* This agreement provides for pager support and four (4) hour on site support
on a "7 day/24 hour" basis in support of FiTech Systems Application by
FutureLink Micro Visions Corp. personnel named above.
* This agreement provides for a team of three (3) technically proficient FiTech
System personnel to supplement Company personnel. Any changes to the
FutureLink Micro Visions Corp. team, either by Company or FutureLink Micro
Visions Corp. will be made with fifteen (15) days written notice. Replacement
(not currently on FutureLink Micro Visions Corp. FiTech System team) will
require a $12,000 credit Company to allow for knowledge transfer.
AMERIQUEST MORTGAGE COMPANY
---------------------------
By: /s/ H. Xxxx Xxxx 12/10/99
--------------------------------- --------
(Authorized Signature) (Date)
H. Xxxx Xxxx, EVP
Chief Information Officer
FutureLink Micro Visions Corp.
------------------------------
By: /s/ Xxxx X. Xxxxxx 12/21/99
--------------------------------- --------
(Authorized Signature) (Date)
Xx. Xxxx Xxxxxx, President & COO
FutureLink Micro Visions Corp.
Futurelink Micro Visions Corp. 144475 Agreement CM001 page 6 of 9
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AMERIQUEST MORTGAGE COMPANY
Exhibit 2
[CM001.002]
FiTech System Project
---------------------
DESCRIBE DELIVERABLES, RATE, ETC. HERE
MR. XXXXXXX XXXX, in the capacity of programming support, commencing on or
about 01/01/2000 and extend through on or about 12/31/2000* provided at the
rate of $160.00 per hour straight time.
Maximum approved amount this exhibit is 2,000* hours and $330,000.00.
* Note: The contract period and number of hours may be extended at the same
rate through June 30, 2001 with ninety (90) days written notice to FutureLink
Micro Visions Corp prior to agreement expiration.
ADDITIONAL TERMS:
- If the Company requires programming support in excess of 2,000 hours, the
above rate schedule applies to the programmer providing the services.
- Authorized overtime will be billed at 1 1/2 times hourly rate for
unscheduled weekend work. FutureLink Micro Visions Corp. will be given
five (5) days notice for scheduled weekend work.
- This agreement does not include the development and management of FiTech
System forms, as they will be managed separately.
- This agreement provides for paper support and four (4) hour on site support
on a "7 day / 24 hour" basis in support of FiTech Systems Application by
FutureLink Micro Visions Corp. personnel, named above.
- This agreement provides for a team of three (3) technically proficient
FiTech System personnel to supplement Company personnel. Any changes to
the FutureLink Micro Visions Corp. team, either by Company or FutureLink
Micro Visions Corp. will be made with fifteen (15) days written notice.
Replacement (not currently on FutureLink Micro Visions Corp. FiTech System
team) will require a $12,000 credit to Company to allow for knowledge
transfer.
AMERIQUEST MORTGAGE COMPANY
By: /s/ H. Xxxx Xxxx 12/10/99
----------------------------- ---------------
(Authorized Signature) Date
H. Xxxx Xxxx, EVP
Chief Information Officer
FUTURELINK MICRO VISIONS CORP.
By: /s/ Xxxx Xxxxxx 12/21/99
----------------------------- ---------------
(Authorized Signature) Date
Xx. Xxxx Xxxxxx, President & COO
FutureLink Micro Visions Corp., 144475 Agreement CM001 page 7 of 9
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Ameriquest Mortgage Company
EXHIBIT 3
[CM001.003]
FiTech System Project
DESCRIBE DELIVERABLES, RATE, ETC. HERE
XXXXX XXXXXXXXX, in the capacity of programming support, commencing on or about
01/01/2000 and extend through on or about 12/31/2000* provided at the rate of
$160.00 per hour straight time.
Maximum approved amount this exhibit is 2,000* hours and $330,000.00.
* Note: The contract period and number of hours may be extended at the same
rate through June 30, 2001 with ninety (90) days written notice to FutureLink
Micro Visions Corp prior to agreement expiration.
ADDITIONAL TERMS:
* If the Company requires programming support in excess of 2,000 hours, the
above rate schedule applies to the programmer providing the services.
* Authorized overtime will be billed at 1 1/2 times hourly rate for unscheduled
weekend work. FutureLink Micro Visions Corp. will be given five (5) days
notice for scheduled weekend work.
* This agreement does not include the development and management of FITech
System forms, as they will be managed separately.
* This agreement provides for pager support and four (4) hour on site support
on a "7 day/24 hour" basis in support of FiTech Systems Application by
FutureLink Micro Visions Corp. personnel, named above.
* This agreement provides for a team of three (3) technically proficient FiTech
System personnel to supplement Company personnel. Any changes to the
FutureLink Micro Visions Corp. team, either by Company or FutureLink Micro
Visions Corp. will be made with fifteen (15) days written notice. Replacement
(not currently on FutureLink Micro Visions Corp. FiTech System team) will
require a $12,000 credit to Company to allow for knowledge transfer.
AMERIQUEST MORTGAGE COMPANY
By: /s/ H. Xxxx Xxxx 12/10/99
------------------------------ --------
(Authorized Signature) Date
H. Xxxx Xxxx, EVP
Chief Information Officer
FutureLink Micro Visions Corp.
By: /s/ Xxxx Xxxxxx 12/21/99
------------------------------ --------
(Authorized Signature) Date
Xx. Xxxx Xxxxxx, President
FutureLink Micro Visions Corp., 144475 Agreement CM001 page 8 of 9
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Ameriquest Mortgage Company
EXHIBIT 4
[CM001,004]
FiTech System Project
DESCRIBE DELIVERABLES, RATE, ETC. HERE
Xxxxxxx Xxxxxx, in the capacity of programming support, commencing on an as
needed basis at the rate of $160.00 per hour straight time.
Maximum approved amount this exhibit is 2,000* hours and $330,000.00.
For FutureLink Micro Visions Corp. employee Xxxxxxx Xxxxxx, Ameriquest will pay
for all expenses relating to Airfare, lodging, per diem and car rental.
Additional Terms:
* If the Company requires programming support in excess of 2,000 hours, the
above rate schedule applies to the programmer providing the services.
* Authorized overtime will be billed at 1 1/2 times hourly rate for
unscheduled weekend work. FutureLink Micro Visions Corp. will be given five
(5) days notice for scheduled weekend work.
* This agreement does not include the development and management of FiTech
System forms, as they will be managed separately.
AMERIQUEST MORTGAGE COMPANY
By: /s/ H. Xxxx Xxxx 12/10/99
-------------------------------------- ----------
(Authorized Signature) Date
H. Xxxx Xxxx, EVP
Chief Information Officer
FutureLink Micro Visions Corp.
By: /s/ Xxxx Xxxxxx 12/21/99
-------------------------------------- ----------
(Authorized Signature) Date
Xx. Xxxx Xxxxxx, President
FutureLink Micro Visions Corp., 144475 Agreement CM001 page 9 of 9
